US Gov't Tops Itself In Waiting Years Before Responding To FOIA Requests With Nothing

from the can-unfulfilled-FOIA-requests-be-passed-on-to-next-of-kin? dept

The Freedom of Information Act is a key element of maintaining government transparency... in theory. In practice, however, those on the receiving end of these requests do everything in their power (and some things lying outside their power) to endlessly delay their responses, or simply hand over page after fully redacted page of "information." Most frequently, both tactics are deployed -- lengthy delays and wholesale redactions -- in order to give the requester something useless long after it's ceased to be relevant.

In June 2007, I filed a Freedom of Information Act (FOIA) request to learn more about the basis for Google's complaint that Microsoft's implementation of desktop search in Windows Vista violated the terms of its 2002 antitrust consent agreement.

In September 2011, I was notified that material relevant to my request would be provided, with a $15 fee to cover copying costs. I sent the check the following month and it was cashed in November 2011. It then took more than a year of hectoring the Department of Justice and the intercession of the Office of Government Information Services to actually get the "responsive materials." The documents arrived in late March.

Six years total, including a year-and-a-half passing between the point the government cashed Claburn's check and when the documents actually arrived. Better late than never, as they say. Or would say, if any of the information obtained was of any use whatsoever.

After six years, the truth can finally be told. What follows is an excerpt from an email sent by Kulpreet Rana, Google's director of intellectual property, to Justice Department attorney Aaron Hoag, dated Oct. 4, 2006.

Thanking Hoag for taking the time to meet the previous week, Rana wrote, "During that meeting, you raised a few questions that we wanted to follow-up on. Rather than waiting to get all of the answers, I wanted to get back to you on some of the more pressing issues...probably the most important of which is REDACTED."

This goes on for an entire page. It's a gray box of nothing.

The dozens of email messages provided in response to my FOIA request look just like this: Page after page of gray where text should be. Only the email addresses, the signatures and the legal and social boilerplate have been left intact.

The pages that the Justice Department saw fit to release include news articles from the New York Times, Reuters and other publications about Google's complaint. The entirety of the "responsive material" either has been available to anyone with an Internet connection for years or consists of names, salutations, thank yous and nothing else.

This sort of stonewalling and overenthusiastic redaction makes a mockery of the FOIA process. It would appear that many government entities would rather be sued into compliance, seeing as they have an unlimited amount of funds to fight the battle, whereas no plaintiff has that luxury.

The conservative government accountability organization Judicial Watch recently received an official response letter to a Freedom of Information Act (FOIA) request the group submitted in September 2002 — nearly 11 years ago.

“It’s quite common for federal agencies as well as the White House to flip the finger at FOIA requests that could expose wrongdoing or shed a negative light,” Judicial Watch wrote in a blog post Tuesday. “In fact, JW often must file lawsuits to get ‘public’ records that should not require litigation to obtain. In this particular case, it took the DIA and NSA a whopping 11 years to determine that the information falls under the ‘release authority’ of a different agency—the Naval Criminal Investigative Service (NCIS).”

Judicial Watch will have to keep waiting. The letter from the NCIS claims it only received the request on March 21, 2013, meaning the DIA and NSA spent more than a decade deciding to kick the can down the road. The NCIS can't honestly be blamed for making the otherwise laughable statement that it will be unable to comply "within 20 days" and invoking the ten working day extension provision. Apparently, the DIA and NSA can't even be bothered to apologize for exceeding the deadline by over a decade.

If government agencies are going to treat the FOIA this way, could they at least get to the point in a more timely fashion? I mean, if you're just going to redact a majority of the information or play a decade-long game of keepaway, at least be upfront about it. A response letter received within 20 days that states nothing more than, "Screw you. Come back with a lawyer," would certainly be preferable to the current time frames. At least, people will know where they're headed next if they really want the requested information.

'Fill one in and send it back'

Given that so many FOIA requests end up needing lawyers and lawsuits to go through anyway, a good time saver would seem to be sending the FOIA request alongside a 'when would be a good time to go to court for you?' letter, with a 1-year deadline on both.

Re: 'Fill one in and send it back'

I'd go the more entertaining way. From my understanding any American can file FOIA requests, right? So once you file one request and it doesn't fly within the expected time frame start filing thousands of requests of the same information. If possible hundreds of thousands. And re-request after the deadline is due. Also you could file thousands of lawsuits in case the response or the time spent are not reasonable. In different states if possible.

Let us see what happens when sheer interest is shown.

Other than that, it's just another day in United Police States of America. If the US were a true democracy this is one of the things that would NOT happen regularly.

[...]

Re: 'Fill one in and send it back'

Just another Sign that should be an Eye Opener for those who do not know of this.It is not a new issue at all.I am 57 years old and all who are my age or older can just use the ole Time Machine and go back to the 1970's .

Remember the stonewalling that occurred after folks learned how the FBI was spying on them for being Environmental Protestors, Vietnam Protestors, ETC.
And years later when they did get anything it was just a bunch of horseshit...........mostly all blacked out stuff.

Re: Re: 'Fill one in and send it back'

The problem is we've allowed a government "class" to form, with all of the problems inherent in a feudalistic society. The US pioneered a new type of democracy, but old ways die hard, and we've slowly moved back to old European ways, even as Europe has embraced more democracy.
This structure was easy to marry to the feudalist corporate structure as well as the military structure. This has resulted in the industrial-military complex we see today, with the corrupt, unethical use of favors for positions as players pass between goverment and industry jobs.
Now that feudalism has taken hold, it won't be shaken from within. We'll need a new country to show the world how it's done. Moon? Mars? Who knows.

FOIA requests are now just a nice system to keep people thinking something will happen and change.
They drag their feet and release next to nothing hoping that they can outlast the people making the request.

Typo?

Methinks that the "within 20 days" was intended to read "within 20 years". Makes the most sense, given the context. Someone at the Department of the Navy must have goofed.

Also: Waiting for a response letter that says, in effect, "Screw you. Come back with a lawyer" is unnecessary, as that sentiment is clearly implied by the government's interpretation of apparent invisible fine print found hidden in the reporting requirements of the FOIA.

Re: Re:

Re: Re: 'Fill one in and send it back'

This is what i was going to say, but also maybe sending the President multiple letters about requests,If the organizations could send hundreds of thousands of requests and hundreds of thousands of requests for the president to resolve the problem i am sure they would listen, nobody likes wasting time opening letters, and i mean paper letters sent by mail, and finding the same complaint or similar complaint repeated over and over and over. They are playing games in not releasing data the public is freely allowed to view, so make their lives absolute hell. Maybe then they will start actually doing what the law requires them to do.

FOIA

During my 30 year sales career, I did lots of international travel. Many of these countries were "controversial" because of known narcotics, money laundering and other. After at about year 20, I started to be stopped for "interrogation" upon re-entry to the US with high frequency. During a chance chat with an off duty US Customs agent, he suggested I (a) write a letter of complaint and (b)file an FOIA letter. I did all these things and what followed was INCREDIBLE. The heavily redacted reply that I received allowed enough of a analysis to conclude that US Customs had me down [suspected], with really crazy "evidence", as "having smuggled large quantities of Narcotics into the US secreted in shipments of wood [to Charlotte]from a country in South America PLUS having made large deposits of money into banks in Colombia, SA.
I filed to have the record expunged (denied) - I also requested - in three different letters - a meeting with the Customs, either locally, regionally or in Washington - do discuss. I asked them why they didn't "prosecute" if they had so much valid information, etc. Well, I am retired now and wouldn't get on an airplane to travel internationally for anything - particularly with the current group of clowns "in charge". Irony is, (A) was Top Secret Cat 3 Crypto in the military, (B) have passed many fingerprint and background checks (Concealed weapons permit plus the FBI's InfraGard organization) and not a peep! Oh, one funny things, I made separate FOIA's to both the FBI and DEA - both came back "clean". Question, if I had been such a bad-ass, don't you think that there would have been some information sharing between agencies - particularly between DEA - Customs? Not a chance. I even wrote letters to McCain, Graham and others - no response. This was/is more comic [tragic] than the Keystone Kops!

Re: FOIA

In defense of the DOJ response, the linked article goes on and on complaining about how all the informaiton is redacted, but fails to provide any specifics. I tend to get very skeptical when people complain about what they receive but aren't willing to show actual copies of the received documents, and this is a very good example of why.

On page 2 of the article, he provides a picture of part of a single page. The redacted portion is - as I expected - witheld under exemption (b)(4). "This section does not apply to matters that are trade secrets and commercial or financial information obtained from a person and privileged or confidential"

Under court precedent (as explained by DOJ - http://www.justice.gov/oip/foia_guide09/exemption4.pdf), improper releae of exemption 4 information can result in a lawsuit and all other sorts of unpleasantness. So, generally, the FOIA office will contact the company (or companies) in question for their input on what qualifies as (b)(4) exempt. In this case, tht would be Google, and possibly Microsoft. This review is a messy process, and can be very long and arduous, hence the delay in response.

And, in the end, what do we get? Google claims that they will be competitively harmed if it's revealed how they are competitively harmed. Not a huge surprise there.

More importantly, this isn't really the government's information to disclose. This is a corner case, admitted, but the FOIA isn't about releasing documents in possession of the government; it's about releasing documents related to the actions and activities of the government. And, accusations of regulatory capture aside, Google's actions and commercial data are not the government's to release.

11-Year Judicial Watch Response:

Not much detail without being able to see the request, but you cna make a fair guess. NSA and DIA regarding September 11? Something tells me there's classified information hidden in those documents. Also, it's most likely that everyone had their hands on it. Clearing 50-year old information that was once stamped "Confidential" can be a headache, to say nothing of records within the past 10-15 years that were likely stamped "Top Secret." And, unfortunately, the review process is highly dysfunctional. Everyone's afraid of any possible leak, so anyone who ever could have potentially touched the document needs to be consulted to determine releasability. So you take the beuracracy of a single office deqaling with a hot potato request, add on the extra handling rules for classified information, and multiply it by the number of agencies involved. As Judicial Watch's good friends the National Security Archive (http://www.gwu.edu/~nsarchiv/) can attest, a governemnt entity responding to a FOIA request regarding sensitive material in under 25 years is downright meteoric.

So they're not picking on Judicial Watch. And frankly, I doubt that msot of the people processing the request are dragging their feet. But the FOIA office on the inside has quite the morass of beauracracy to wade through to get anything done on that sort of a request.

In short, there's not an evil shadow FOIA conspiracy full of cackling devils looking how to be cruel. It's mostly overworked and underpaid office drones, just like any other government office. If you're looking for systemic avoidance of the FOIA, the root cause is (for the msot part) no more and no less than a failure for leadership to consider FOIA a priority and/or reform the dysfunctionalities.

nasch Re: FOIA - Dates

My first letter to Department of the Treasury (US Customs Service) was acknowledged on 10 March 1997. FOIA was filed on 01 March 2000. Customs responded on 14 and 20 June 2000 indicating 14 pages of information (heavily redacted). On 06 July 2000 I requested "to expunge or amend" which was denied on 14 August 2000. I appealed on 08 September 2000 - denied.
Other:
09 March 2001 to FOI Unit at DEA - their response was "no information, etc. on record."
10 October 2001 to Bob Graham, Chairman Select Committee on Intelligence with CC to Porter J. Gross, Chair House Committee on Intelligence - no response from either (and I live in Florida).
09 October to Robert C. Bonner, Commissioner, Dept. of Treas., Us Customs - no response
Plus a few others which I don't have at hand.